The Supreme Court is back, and its October oral argument calendar
is chock full of blockbuster cases. Even
with the removal of the challenge to President Trump’s Muslim travel ban, it’s
hard to remember a single month with so many important cases. These October cases aren’t the only big cases
on the docket this Term, but they will certainly define this year at the
Supreme Court.

This lineup of blockbuster cases comes at a critical juncture. For much of the last two years, the Supreme
Court has hobbled along with eight Justices, avoiding big cases and issuing
extremely narrow rulings. This Term,
Chief Justice John Roberts is back at the helm of a fully staffed Court. This may also be a big Term for Justice Neil
Gorsuch, who joined the Court in April and quickly showed that he would be on
the far right of the Court. Given the
cases on the docket this Term, Justice Gorsuch will face a series of huge tests
whether he will follow the Constitution’s text and history, no matter where it
leads.

The term begins with a truly momentous case testing whether
states may draw district lines that discriminate against voters on account of
their political affiliation. On October
3, the second day of the Term, the Supreme Court will hear Gill v.
Whitford, a landmark case on constitutional limits on partisan
gerrymandering, which could change how state legislatures draw district
lines. The stakes for our democratic
system of government could not be bigger.

Partisan gerrymandering is a cancer on our democratic system
of government, turning on its head the fundamental principle that voters choose
their elected representatives, not the other way around. In Gill,
the Justices confront a particularly grotesque set of facts: in 2011, after
Republicans took control of the Wisconsin state legislature, they met behind
closed doors to devise new Assembly districts, drawing lines so that their party
would wield political power far in excess of votes cast at the polls. Taking advantage of new technology to
manipulate the district lines for maximum advantage, Republicans in Wisconsin
sought to entrench their party in power no matter what happened in future
elections.

In Gill, the
Supreme Court will decide whether the government may, consistent with the
Constitution’s guarantees of freedom of speech, freedom of association, and
equal protection for all persons, act to subordinate members of a political
party because of their views and degrade the effectiveness of their votes. The Court should
strike down Wisconsin’s extreme partisan gerrymandering, making clear that,
under our Constitution, states cannot rig the electoral process to entrench the
governing party in power. Striking down Wisconsin’s brazen gerrymander would
not end all gerrymandering, but it would send a powerful lesson: courts will
step in when legislators seek to perpetuate themselves in power.

In Gill, all eyes
will be on Justice Kennedy,who
almost certainly will cast the deciding vote. Over the course of three decades on the
Supreme Court, Justice Kennedy has issued a long list of landmark First
Amendment rulings, defending the special role that free speech and association
plays in our democracy and making clear that the government may not regulate
speech and association “based on disapproval of the ideas and perspectives”
expressed, “which is the essence
of viewpoint discrimination.” The
question in Gill is whether Justice
Kennedy will carve out a redistricting exception to these principles,
permitting the government to subordinate persons because of their political
views and affiliation.

Justice Kennedy’s record in past gerrymandering cases is
mixed, but he has previously recognized that the First
Amendment may be a specific limit on partisan gerrymandering by the states.
As he has written, “First Amendment
concerns arise where a State enacts a law that has the purpose and effect of
subjecting a group of voters or their party to disfavored treatment by reason
of their views.” If Justice Kennedy
votes to give state legislators a green light to gerrymander and degrade the
voting rights of their political opponents, it would be a black mark on his
First Amendment legacy.

Corporate accountability will be another big theme of the
Court’s October cases —and likely the Term as a whole. The Supreme Court under the leadership of John
Roberts has, year in and year out, rewritten the law to make it harder for workers,
consumers, and others to hold corporations accountable in the courts for their
wrongdoing. As Adam
Winkler has observed, “one thing remains constant on a dynamic Supreme
Court: corporations and business interests win.” The Supreme Court Term opens with two
blockbuster cases in which corporations are urging the Court to close the
courthouse doors to those injured by corporate abuse of power.

On October 2, the Court will hear an important case about
whether employers can force their employees to give up the right to bring class
actions in court to hold corporations accountable and make their employees
arbitrate their cases before a decisionmaker handpicked by the company. In Epic
Systems Corp v. Lewis, a slew of corporations, backed by the Chamber of
Commerce and the Trump Administration, argue that employees can be forced to
waive their right to file class-action lawsuits against their employers and
submit to binding arbitration, even though federal
law explicitly guarantees employees the right to “engage in . . . concerted
activities for the purpose of . . . mutual aid or protection.” On October 11, in Jesner
v. Arab Bank, the Supreme Court will consider whether corporations can ever
be sued under the Alien Tort Statute, a Founding-era federal law designed to
ensure that foreigners can sue for a violation of the law of nations. The Alien Tort Statute does not limit at all
who may be sued, and, for centuries, it has been well settled that corporations
may be sued for corporate wrongdoing.
But the Arab Bank, whose New York branch allegedly financed
international terrorism, insists that it cannot be held accountable.

Epic and Jesner pose a key test for Justice
Gorsuch, whose very first
opinion for the Court insisted that “it is . . . our job to apply faithfully
the law Congress has written,” making clear that courts should not “rewrite a
constitutionally valid statutory text under the banner of speculation about
what Congress might have done had it faced a question that, on everyone’s
account, it never faced.” “The business
of enacting statutory fixes,” Gorsuch wrote in another opinion,
is “one that belongs to Congress and not this Court.” The question now is whether Justice Gorsuch
will abide by these principles or try to find a way to rewrite the law to close
the courthouse doors on injured workers and others.

Trump’s travel ban won’t be argued in October—at least for
now—but other important immigration cases remain on the docket. Last Term, the Supreme Court had two major
immigration cases on its docket—Jennings
v. Rodriguez and Sessions v.
Dimaya—which it was unable to resolve.
Both will be reargued in October.

It is a basic constitutional principle that whenever the
federal government acts, it is bound by constitutional limits on its
power. Deference to the political
branches, as Chief Justice John Roberts put it in the health
care decision of 2013, “can never extend so far as to disavow restraints on
federal power that the Constitution carefully constructed.” The question for the Justices this Term is
whether this basic principle applies when the federal government regulates
immigration, or whether immigration is a Constitution-free zone in which the
usual rules don’t apply.

In Jennings, the
Justices will consider whether immigrants held in prolonged, indefinite
detention—up to several years in some cases—pending their deportation are
entitled to a bail hearing to ensure protection of their fundamental
liberty. In Dimaya, the Court will determine if immigrants can be subject to
mandatory deportation under vaguely-worded federal statutes. In both cases, the U.S. government—as it has
in the travel ban cases—is urging the Court to apply a watered-down version of
constitutional protections in the immigration context.

After a relatively quiet 2016, the Supreme Court has a long
list of blockbuster cases on tap for 2017.
What happens in the first month of the new Supreme Court Term will go a
long way to defining the Roberts Court in the Trump era.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.